Australian Energy Regulator v Pelican Point Power Ltd (No 3) [2024] FCA 277

Australian Energy Regulator v Pelican Point Power Ltd (No 3) [2024] FCA 277

Pelican Point Power Ltd contravened cl 3.7.3(e)(2) of the NER by four ST PASA submissions between 6 February 2017 at 11:00 and 7 February 2017 at 11:25, each for 48 trading intervals on 8 February 2017, submitting availability values of 220 MW when 320 MW could be made available on 24 hours' notice; and contravened cl 3.13.2(h) by failing to notify AEMO promptly of increased medium term PASA availability for 8 February 2017 (from 224 MW to 320 MW) after 3 February 2017. A single civil penalty is appropriate as the contraventions arose out of a single course of conduct over a short period, were not intentional or deliberate, did not result in financial loss, but related to an important...

Parties
Applicant: Australian Energy Regulator; Respondent: Pelican Point Power Ltd
Jurisdiction
Australia
Judgment Date
27 March 2024
Procedural Posture
Civil Penalty Proceeding / Final Relief and Penalty Determination Following Separate Trial on Liability
Outcome
Declarations made; civil penalty imposed
Legal Topics
Civil Penalties, Contravention of National Electricity Rules, PASA Submissions, Market Regulation
Consumer Law Energy Law Competition Law Regulatory Law Civil Penalties Contravention of National Electricity Rules PASA Submissions Market Regulation

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Parties

Australian Energy Regulator

Applicant

Pelican Point Power Ltd

Respondent

Procedural Posture

Civil Penalty Proceeding / Final Relief and Penalty Determination Following Separate Trial on Liability

Legal Issues

  1. 1 Whether Pelican Point Power Ltd contravened clause 3.7.3(e)(2) of the National Electricity Rules by submitting short term PASA availability values not reflecting current intentions and best estimates as to physical plant capability available on 24 hours' notice;
  2. 2 Whether Pelican Point Power Ltd contravened clause 3.13.2(h) of the National Electricity Rules by failing to notify AEMO promptly of change to medium term PASA availability;
  3. 3 The form and terms of appropriate declarations and the number of contraventions;

Ratio Decidendi

Pelican Point Power Ltd contravened cl 3.7.3(e)(2) of the NER by four ST PASA submissions between 6 February 2017 at 11:00 and 7 February 2017 at 11:25, each for 48 trading intervals on 8 February 2017, submitting availability values of 220 MW when 320 MW could be made available on 24 hours' notice; and contravened cl 3.13.2(h) by failing to notify AEMO promptly of increased medium term PASA availability for 8 February 2017 (from 224 MW to 320 MW) after 3 February 2017. A single civil penalty is appropriate as the contraventions arose out of a single course of conduct over a short period, were not intentional or deliberate, did not result in financial loss, but related to an important...

Court Disposition

Declarations made; civil penalty imposed

Orders

  • By each of its four short term PASA submissions made between 6 February 2017 at 11:00 and 7 February 2017 at 11:25 identified for each of the future trading intervals during the 8 February 2017 trading day, the respondent contravened cl 3.7.3(e)(2) of the NER;
  • The respondent contravened cl 3.13.2(h) of the NER by failing to notify AEMO promptly on or after 3 February 2017 that the medium term PASA availability for 8 February 2017 had increased from 224 MW to 320 MW;